‘Nigeria Now Has World Class Arbitration Centres’
He is a distinguished legal practitioner, having held the topmost positions that the profession accords at various levels, including being the President of the Nigerian Bar Association (NBA) (2004 – 2005) and Attorney-General of the Federation and Minister of Justice (June, 2005 – May, 2007). Today, Chief Christopher Adebayo Ojo, CON, SAN, C.Arb, is internationally recognised as an Arbitrator. A member of the of the outstanding Nigerian Law School Class of 1978, Chief Bayo Ojo, SAN is currently the President of the African Arbitration Association and Editor-In-Chief of the Nigerian Journal of Arbitration and Mediation. He has authored and co-authored many publications, on Arbitration and Mediation. In a chat with Onikepo Braithwaite and Jude Igbanoi last week, he shared his dreams about making Nigeria a major international arbitration hub, and deepening the practice in Nigeria, as well as touching on the highlights of the newly enacted Arbitration and Mediation Act 2023
As one of the leading authorities in Arbitration in Nigeria, we have this situation where there are so many arbitration bodies in the country. There doesn’t seem to be any cohesion and cooperation. How is the profession regulated under this circumstance?
I am not too sure if there are so many arbitration bodies in Nigeria, as I know of only three bodies, the Chartered Institute of Arbitrators, Nigeria Branch, which is a Branch of the Chartered Institute of Arbitrators, UK, the Institute of Construction Industry Arbitrators and the Nigerian Institute of Arbitrators. If you are thinking of ADR in this regard, then one has to include the Institute of Chartered Mediators and Conciliators. I hope you are not confusing Arbitration Centres, which are many, with Arbitration Bodies.
Unfortunately, the Arbitration Bodies are not regulated by anyone but themselves, through the instruments that establish them and their bye laws. There is a code of conduct for arbitrators, who belong to any of the bodies I mentioned above. However, where a supposed arbitrator does not belong to any professional body, he or she is simply at large and not responsible to anyone. And, there are quite a number of them who make the arbitration waters very murky. This is a typical Nigerian thing. Some Nigerians are very fond of passing off other people’s sweat. That is why you will find a small supermarket somewhere in Bodija in Ibadan called Harrods, a small zero star hotel in Ikeja called Hilton etc. These untoward acts have now crept into the academic world, where you now find honorary professors etc, whatever that means. We are just ridiculing ourselves before the outside world. No one outside this country will take us seriously, because of these deviant acts of a few people.
Some have asked, whether a part-heard matter already in court, can be submitted for arbitration? If so, does the court case conclude when arbitration is chosen, or can the parties return to court if they are dissatisfied with the Award of the arbitration proceedings?
This is an interesting question, and the answer is not that straight forward, as it will depend on the stage the matter in court has progressed to.
Section 5(1) of the Arbitration and Mediation Act 2023 provides that a court before whom an action is brought can refer such matter to arbitration, if any of the parties so request. But, there is a proviso embedded in that provision, which is that, such request by a party must be made not later than when submitting its first statement on the substance of the dispute. The implication of this is that once you have crossed this stage, it will be a point of no return, as you can no longer go back and seek to refer the matter to arbitration.
Once the court refers a matter to arbitration, it will adjourn the case sine die for the arbitration to proceed and be concluded. In other words, you cannot be running an arbitral proceeding simultaneously with a court proceeding. Also, once the arbitration is concluded, you can only report the outcome to the court that referred the matter to arbitration, and not for the dissatisfied party to re-litigate the said matter all over again in the court. Rather, a dissatisfied party can seek to set the said award aside if there are grounds to so do, but, you cannot appeal against the decision of an arbitral tribunal. You can only challenge an award by seeking to set it aside, or request a court to refuse to recognise and enforce an award. But, the reasons for so doing must be very cogent.
In a situation where a specific provision for an arbitration clause is not made in a contract, can parties choose to opt for arbitration when a dispute arises in the contract? Or has it become the law that an arbitration clause must be included in all contracts?
Where there is no provision for an arbitration clause in a contract, the parties can only opt for arbitration if they both agree to do so. In which case, they now have to sign what is called a submission agreement. But, if one of the parties declines to do so, then there can be no arbitration in the circumstance, except litigation.
It is not compulsory that an arbitration clause must be included in a contract, and there is no law to that effect. However, it is now prudent and advisable to do so, particularly if it is a commercial contract, as the process of arbitration is quicker and more efficient in resolving disputes, as against the regular courts that cases take forever to be decided because of the delays that are occasioned in regular courts, which are too numerous to mention. It will take me a whole day, to discuss the issue of delays in litigation.
To underscore this point, suffice for me to recount the story told by Mr Ebun Sofunde, SAN on 27th November, 2023 at the swearing in of new Silks at the Supreme Court. He said one of the new Silks was born in 1981. In 1983, which was two years after he was born, his dad who is a Lawyer instituted a case against Shell Petroleum Development Company (SPDC) in Warri, which was part of Bendel State that was created in 1976. In 1997, which was fourteen years after the suit was instituted, the Warri High Court delivered judgement in the case. Unfortunately, when the said judgement was delivered, Bendel State was no longer in existence, as it had been split into Delta and Edo States in 1991 when the case was still pending. SPDC appealed the judgement to the Court of Appeal and lost in 2000. It further appealed to the Supreme Court which gave judgement in the matter in 2015, thirty two years after the case was instituted. This is why arbitration and mediation is now the preferred method of resolving disputes.
Most Nigerian Arbitrators have expressed concerns that it is easier to initiate arbitration in places like Malta, London, Singapore and other foreign countries than Nigeria. Why is Lagos or Abuja not an attractive arbitration seat? How can we reverse this negative trend, and make them an attractive arbitration spot, especially for contracts that involve Nigerian parties?
I do not agree with those who have expressed concerns, that it is easier to initiate arbitration in places like Malta, London, Singapore and other foreign countries than Nigeria. In the past, yes; but, now, it is just a perception which is wrong. There are very good world class arbitration centres in Nigeria now, that can comfortably and adequately host international arbitration hearings like you have in other parts of the world. However, that does not mean that there is no need to make Lagos or Abuja more attractive seats for international arbitration hearings. I am aware that efforts are being made in this regard. The new Arbitration and Mediation Act 2023, is such an effort. The Ease of Doing Business by the Presidential Enabling Business Environment Council under the Special Adviser to the President, Dr Jumoke Oduwole is another good effort.
Another area is, with regard to the courts. Nigerian Judges are now undertaking courses in arbitration, in order to understand the process and not be a clog in the wheel. They have now found that, Arbitration is not competing for their jurisdiction. Rather, it is assisting in decongesting their court dockets, thereby, allowing them to have more time to adjudicate on cases. So, Judges now support Arbitration, and they are doing so now because of their knowledge of the process. I recall that the new Civil Procedure Rules in the UK which included ADR, came into force in 1998. Ten years after, a committee was set up headed by the late Arthur Leslie Marriott QC to take stock of progress made under the new Rules. Amazingly, it was discovered that majority of cases filed within that ten-year period which first went for ADR, were settled. This is food for thought. Happily, our Rules of Court including the High Court and the Court of Appeal, now provide for ADR.
However, much can still be done to make Nigeria an attractive seat. An example is in the area of infrastructure like roads, rail travel, security, good hotel facilities and ease of obtaining visas for entry into Nigeria. I am happy to note that the Minister if Interior, Mr Olubunmi Tunji-Ojo is doing something about this.
The truth of the matter is that, in most jurisdictions all over the world, we now have what I call arbitration tourism. One can enhance, promote, encourage, facilitate and advance the use of international arbitration to build an enabling environment for investment and sustainable development. This is more so for us in Africa, with the coming into force of the African Continental Free Trade Area (AFCFTA) protocol on investments, which was recently adopted by the African Union Heads of State Meeting to facilitate investments within the State Parties. Currently, Africa has a population of 1,474,500,313 under the United Nations Estimates. This means that the AFCFTA has now created the single largest Free Trade Area, since WTO was established in 1995. Hence, this will unite Africa through economic integration, enhance free movement of goods and services, reduce poverty and increase shared prosperity.
At the fireside chat at Davos World Economic Forum on 16th January, 2024, the Secretary General of the AFCFTA Mr Wamkele Keabetswe Mene said the private sector is ready to go. The implication of all this, is the growth of cross-border services for clients, legal advisory services, mediation and arbitration. Hence, we must ensure that such disputes as would arise from these cross-border activities, are resolved at Arbitration Centres in Africa.
To your question on contracts involving Nigerian Parties, the Committee on National Policy on Arbitration headed by Dr Olisa Agbakoba, SAN, has made far reaching recommendations in this regard. I don’t want to pre-empt the outcome of their report.
Another common complaint is that, arbitral awards are easily challenged in the Nigerian courts. To this end, arbitration now looks like a step towards litigation, as almost every arbitral award gets challenged in court. What can be done about this, to make arbitration awards really final and binding? Is it that parties don’t have trust in arbitrators and the proceedings?
I agree that in Nigeria, arbitral awards are usually challenged unnecessarily. This is because a lot of Nigerian Lawyers are not very familiar with the terrain of arbitration, and therefore, wear their normal litigation cap when they come into it. Sometimes, they refuse to co-operate with a hearing by seeking injunctions from the courts to stop arbitrations for no cogent reason, other than to frustrate a hearing. This is called gorilla tactics in arbitration. This does not augur well for us as a country, in our quest to make Nigeria an attractive seat for arbitration. It also creates a problem of trust by parties in the process as no one wants to spend time and money arbitrating, only to be unable to realise the fruits of their success.
The solution to this, is to get some of our colleagues who are not versed in the arbitral process to get trained in it. The Nigeria Bar Association should also include Arbitration and Mediation, as a compulsory module under its soon to be compulsory continuing legal education. Happily, the Director General of the Law School, Professor Isa Hayatu Chiroma, SAN, has included arbitration programmes in the Nigerian Law School. Finally, though a lot of our Judges have now been trained in arbitration, none should be left behind.
We understand that a new Arbitration Act is about to be passed. Kindly, share with us the highlights of the new Act and the major provisions which you consider new and innovative?
The new Arbitration Act has actually come into force, after sixteen years in the cooler. It was signed into law by President Muhammadu Buhari, GCFR on 26th May, 2023, shortly before he left office. I must give him and the immediate past Attorney-General and Minister of Justice, Mallam Abubakar Malami, SAN kudos for this. This is so, because I initiated the Bill in 2005 when I was in office as the Attorney-General and Minister of Justice, when I set up the National Committee on the Reform and Harmonisation of Arbitration and ADR Laws in Nigeria, headed by the late Jurist Hon. Justice (Dr) Olakunle Orojo and assisted by Chief (Mrs) Tinuade Oyekunle. Somehow it did not see the light of day at the National Assembly until May 2023, which is a period of sixteen years.
Let me also commend all the members of the Arbitration Stakeholders Group led by the Chartered Institute of Arbitrators Nigeria Branch which set up a Committee to complete the process, the President of the Nigerian Bar Association, Mr Yakubu Maikyau, SAN, Chairman of the Nigeria Branch, Chief Gbola Akinola, SAN, Prof Paul Idornigie, SAN, Mrs Funmi Roberts, and the Chairmen of the Judiciary and Legal matters Committee of the Senate and House of Representatives, Senator Opeyemi Bamidele and Hon. Onofiok Luke, who worked tirelessly to ensure that the law was passed. Other members of the Committee include Mrs Funke Adekoya, SAN, Mr Dele Belgore, SAN, Mr Olatunde Busari, SAN, Mrs Adedoyin Rhodes-Vivour, SAN, Mrs Miannaya Essien, SAN, Mr Adeyemi Candide-Johnson, SAN, Mr Olasupo Sashore, SAN, Mr Tunde Fagbohunlu, SAN, Mrs Shola Adegbonmire, Mr Richard Akintunde, SAN, Mr Pascal Madu, Mrs Oyinkan Badejo-Okusanya, Mr Seyilalyo Ojo, Mr Isaiah Bozimo, SAN, Mr Henry Chibor, Mr Adewale Jones, Mrs Jean Chiazor-Anisere, SAN, Mr Emmanuel Dike, Mrs Kemi Eweje and Mrs Caroline Etuk.
Highlights of the new Act and some provisions which I consider innovative include, the merger of the old confusing Sections 4 and 5 in the 1988 Act on stay of proceedings in court pending arbitration to make it only Section 5, recognition of electronic arbitration agreement, default number of arbitrators to be one, immunity of arbitrators and arbitral institutions, consolidation of arbitral proceedings, joinder, interim reliefs, emergency arbitrations, third party funding, limitation period to arbitral proceedings, mediation. By far the most innovative provision is that of an Award Review Tribunal (ART), which provides for parties to agree to refer their award to an Award Review Tribunal.
To what extent can arbitration cases be used for the requirements of Silk, given the fact that there are no reports and precedents that can be cited and relied on? Do you believe that the 2022 Guidelines for the elevation to the rank of Senior Advocate of Nigeria are satisfactory? Some argue that it is unfair to restrict the number of Academics elevated to only one per year, while others think that Solicitors who have distinguished themselves in their field should be included, as is done in the UK. What do you think?
I am aware that Arbitration cases are permitted to be used for the requirement of Silk by the Privileges Committee, which is a good development. Naturally, the issue of precedents will not be applicable to Arbitration awards, but, if an arbitration case is one that was seriously contested in a hearing, I see no reason why it should not be accepted as such.
I do believe that the 2022 Guidelines for the elevation to the rank of Senior Advocate of Nigeria needs further review, particularly, with regard to Academics and Solicitors who have distinguished themselves in their field as is done in the UK, where both Barristers and Solicitors are eligible for silk. Concerning Academics, I believe Academics who have distinguished themselves with their writings and are not Professors, should also be eligible.
What do you think about the wig and gown which Lawyers still wear to court in Nigeria?
I am of the view that it is anachronistic, and should be done away with immediately. I said this as far back as 1988 when I was the Chairman of the Nigeria Bar Association in Ilorin, but, my colleagues were not prepared to listen then. I am making the call again, 36 years after. Lawyers should be required to wear only dark suits to the Courts. The NBA can specify the new dress code of the kind of dark suit that will be acceptable. This will also save the country a lot of foreign exchange, used to procure them from abroad.
As a former Attorney-General of the Federation, do you have any advice for the Attorney-General of the Federation and Minister of Justice, Prince Lateef Fagbemi, SAN on his new assignment?
If I have any advice for him, I shall pass such to him directly and not on the pages of newspapers. Suffice to say that, he is a round peg in a round hole. He is a very erudite and experienced Lawyer, who has paid his dues in practice. Above all, he has a calm mien, and is also an accomplished Arbitrator. I have no doubt that, he will make a success of the office.
Thank you Learned Silk.
